In Dominion Voting Systems, Inc. v. Wisconsin Elections Commission (2019AP272), the Court of Appeals District IV held that parties reviewing voting software during a recount may disclose opinions based on review of the software.

Wis. Stat. § 5.905(4) provides that if there is a recount in a state election, a party may review software components used to record votes in the election. The statute requires the Wisconsin Election Commission to grant access to software components if the party enters into a confidentiality agreement.

In 2016, the Jill Stein Campaign requested review of the Election Systems & Software, LLC’s electronic voting system used in the November 2016 election. Allowing the campaign to review the system pursuant to § 5.905(4), the Commission provided a confidentiality and nondisclosure agreement that required the campaign to maintain the confidentiality of “all proprietary information.” The Commission did not specifically prohibit the campaign from publicly disclosing any opinions based on review of the Election Systems software.

In this case, Election Systems argued the Commission’s confidentiality agreement was not broad enough to satisfy the confidentiality requirement of § 5.905(4). According to Election Systems, the Commission should have prohibited the campaign from disclosing any comments or opinions derived from the campaign’s review of the voting software.

The appeals court disagreed with Elections System, finding that the plain language of § 5.905(4) does not prohibit reviewing parties from disclosing opinions based on review of voting software. Instead, the statute simply requires maintaining confidentiality of “proprietary information” (i.e., the actual software components). The Commission was not required to expand on the statutory language in its confidentiality agreement with the campaign to prohibit disclosure of opinions based on review of those software components. Furthermore, the court found that the campaign’s disclosure of opinions on the software components was not an unauthorized use of Election Systems’s trade secrets.